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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. CIV S-04-0776 LKK EFB P

vs.

D.L. RUNNELS, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

U.S.C. § 1983. Plaintiff has repeatedly complained about the orders and recommendations

issued by the undersigned, most recently in 43 pages of objections to the Order and Findings and

Recommendations issued on August 30, 2010. Dckt. No. 186. The undersigned will construe

these recent complaints as a request for disqualification or recusal pursuant to 28 U.S.C. § 455. 

For the reasons explained below, the court finds that there is no basis for disqualification.

A judge is required to disqualify himself if his impartiality might reasonably be

questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice concerning a party, 28

U.S.C. § 455(b)(1). Remarks made during the course of a judicial proceeding that are critical or

hostile to a party or his case ordinarily will not support a bias or partiality claim unless they

reveal an extrajudicial source for the opinion, or “such a high degree of favoritism or antagonism

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as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). 

Where the source of alleged bias or prejudice is a judicial proceeding, plaintiff must

show a disposition on the part of the judge that “is so extreme as to display clear inability to

render fair judgment.” Liteky, 510 U.S. at 551. “[O]pinions formed by the judge on the basis of

facts introduced or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment impossible.” Id. at 555. Bias is

not found where the judge has expressed anger or dissatisfaction or annoyance that are within the

bounds of reasonable behavior. Id. at 555-56.

 The decision regarding disqualification is made by the judge whose impartiality is at

issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). The test for disqualification under 

§ 455 is whether a reasonable person with knowledge of all the facts would conclude that the

judge’s impartiality might reasonably be questioned. United States v. Winston, 613 F.2d 221,

222 (9th Cir. 1980). Evaluations of impartiality, bias or prejudice under § 455 are made using an

objective standard. Id.

Evaluated under this objective standard, plaintiff’s motions fail to demonstrate personal

bias or lack of impartiality. Plaintiff accuses the undersigned of bias and repeated abuses of

discretion and continually calls the undersigned’s integrity into question. Plaintiff’s allegations,

however, are not supported by objective evidence showing that the undersigned’s impartiality

might reasonably be questioned, or that he has a personal bias or prejudice against plaintiff. 

Rather, plaintiff is simply dissatisfied with the rulings in this action. Adverse rulings do not

establish bias nor warrant recusal. Furthermore, nothing in these rulings suggests that the

undersigned harbors any favoritism or antagonism that interferes with the ability to remain

impartial. Thus, plaintiff’s motions must be denied.

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Accordingly, it is hereby ORDERED that plaintiff’s October 13, 2010 filing, to the extent

it seeks disqualification or recusal of the undersigned, is construed as a motion for recusal, and

as such, is DENIED.

DATED: October 18, 2010.

Case 2:04-cv-00776-TLN-EFB Document 187 Filed 10/19/10 Page 3 of 3